Dallas’ Fifth Court of Appeals has reversed a $1 million jury award to two women sexually assaulted by an intruder who came into their apartment through a window with a faulty latch.

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Dallas’ Fifth Court of Appeals, taking on the issue of foreseeability of criminal conduct, has reversed a $1 million jury award to two women sexually assaulted by an intruder who came into their apartment through a window with a faulty latch.

The case, AVPM v. Childers, arises from an assault that occurred at Tracy Childers’ apartment at Stoneleigh Place in Garland, leading to a jury finding that the apartment owner was partially responsible for the attack.

When Childers moved into the apartment in 2014, she noted during an inspection that the latch on the living room windows didn’t work. AVPM, the company that owned the complex, attached thumb screws to her window but did not repair the latch, according to the decision.

Months later, Jared Alan Wade, now 25, entered Childers’ apartment through the living room window and sexually assaulted both Childers and Mary Ruth Trout, the court said. Wade was later arrested and pleaded guilty, and was sentenced to 50 years in prison. Wade later stated that he entered the apartment through an unlocked window, according to the decision.

Childers and Trout contend that the window was not properly repaired, which allowed Wade to force his way in. They sued AVPM for negligence and premises defect. A jury later found that AVPM, Childers and Wade all engaged in negligent conduct and assigned 40 percent fault to AVPM, 10 percent to Childers, and 50 percent to Wade. Trout was not submitted as a responsible party. The jury awarded damages to Childers and Trout, of which AVPM’s share was $1 million.

AVPM later filed a motion notwithstanding judgment asking for the verdict to be set aside, contending that no evidence was presented at trial to show the foreseeability of third-party criminal acts. Childers and Trout responded that AVPM owed them a legal duty by virtue of Texas law requiring functional window latches, and violation of those laws was negligence per se. The trial court rejected the JNOV motion, a decision AVPM appealed to the Fifth Court.

In their July 3 decision, the Fifth Circuit concluded the plaintiffs’ award should be set aside because they failed to show that AVPM’s conduct was the proximate cause of their damages—a claim that required them to show that crime was foreseeable.

“When the premises owner has no direct knowledge that criminal conduct is imminent, which appellees have not alleged, the plaintiff must present evidence showing past criminal conduct made similar conduct in the future foreseeable,” wrote Justice Molly Francis.

“The record in this case shows, and counsel for appellees conceded during oral argument, that appellees presented no evidence at trial of any recent criminal conduct in the area of Stoneleigh Place similar to the incident in question,” Francis wrote, reversing and ordering that Childers and Trout take nothing.

Matthew Kita, a Dallas attorney who represented Childers and Trout on appeal, was disappointed that the Fifth Circuit reversed his clients’ trial court win by concluding that no reasonable jury could find AVPM liable. He plans to ask the Fifth Court to rehear the case, he said.

“As the entire purpose of a jury trial is to allow members of the public to serve as the conscience of our community and determine what is reasonable conduct in our society, their decision should be respected,” Kita said.

Kita also noted that AVPM never asked the trial court to instruct the jury on the foreseeability issue.

“From an appellate procedure standpoint, AVPM never moved for summary judgment on this issue. AVPM never asked the court to tell the jury that they could only find AVPM negligent if there was evidence of other similar crimes in the area,” Kita said.

“For the court of appeals to conclude that ‘no reasonable juror’ could reach a decision based on law that it was never provided is contrary to the well-established rules on waiver and error preservation,” he said.

Kyle M. Burke, a senior attorney in Dallas’ Cooper & Scully who represents AVPM on appeal, did not return a call for comment.

Texas Lawyer has a policy of not naming sexual assault victims, but Childers and Trout wanted their names to be made public because they are angered over the Fifth Court’s decision, according to Lin McCraw, a McKinney attorney who represented the women at trial.

“These women feel like they have been violated by the court. It’s bad enough to get raped once, but to have something like this happen makes it worse,’’ McCraw said of the Fifth Court’s decision. “This is a raw exercise of power. They justifiably believe that they have been violated again.”

McCraw noted that Childers and Trout were involved in a relationship at the time of the rape, and remain the best of friends, but, “This result is going to apply well beyond the fact of who the victim is. Any woman whose lock on the window doesn’t work is at risk here.”

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